BILL NUMBER: AB 744	CHAPTERED  07/26/99

	CHAPTER   167
	FILED WITH SECRETARY OF STATE   JULY 26, 1999
	APPROVED BY GOVERNOR   JULY 23, 1999
	PASSED THE SENATE   JULY 15, 1999
	PASSED THE ASSEMBLY   MAY 24, 1999
	AMENDED IN ASSEMBLY   MAY 18, 1999
	AMENDED IN ASSEMBLY   APRIL 13, 1999

INTRODUCED BY   Assembly Member McClintock
   (Coauthor:  Assembly Member Migden)

                        FEBRUARY 24, 1999

   An act to add and repeal Section 781.5 of the Welfare and
Institutions Code, relating to juvenile court records.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 744, McClintock.  Juvenile court records:  sealing and
destruction.
   Existing law authorizes a minor, who has been the subject of a
petition to adjudge him or her a ward of the court or has been cited
to appear or taken before a probation or law enforcement officer, to
petition the court for the sealing of his or her records, which
petition may be filed 5 years after the jurisdiction of the juvenile
court terminated; if no juvenile court petition was filed, 5 years
after the minor was cited or taken before a probation or law
enforcement officer; or after the minor reaches the age of 18 years.
Under existing law, the petition to seal the records may be granted,
after a hearing, if the court makes specified findings.
   This bill would add new provisions regarding the sealing of
juvenile court records that would be applicable in those cases where
a minor is detained, arrested, or cited but no accusatory pleading or
petition is filed, or in those cases where an accusatory pleading or
petition is filed but is not sustained.  The bill would, in those
cases, require the law enforcement agency and probation officer to
seal a minor's records, as specified, upon a determination by them,
in specified circumstances, or by the court, following a specified
hearing or motion, that the minor is factually innocent, as
specified. The bill would also require, in certain cases, the
issuance of a written declaration to the minor regarding his or her
factual innocence, as specified, and would specify procedures and
timeframes to be followed by law enforcement and other agencies with
respect to the sealing and destruction of juvenile court records.
Because this bill would impose new duties on court personnel and law
enforcement and other local agencies, it would create a
state-mandated local program.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   The California Constitution requires that any statute that would
cause relevant evidence to be excluded in any criminal proceeding or
in any trial or hearing of a juvenile for a criminal offense must be
approved by a 2/3 vote of the Legislature.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 781.5 is added to the Welfare and Institutions
Code, to read:
   781.5.  (a) Notwithstanding Section 781, in any case where a minor
has been cited to appear before a probation officer, has been taken
before a probation officer pursuant to Section 626, or has been taken
before any officer of a law enforcement agency, and no accusatory
pleading or petition to adjudge the minor a ward of the court has
been filed, the minor may request in writing that the law enforcement
agency and probation officer having jurisdiction over the offense
destroy their records of the arrest or citation.  A copy of the
request shall be served upon the district attorney of the county
having jurisdiction over the offense.  The law enforcement agency and
probation officer having jurisdiction over the offense, upon a
determination that the minor is factually innocent, shall, with the
concurrence of the district attorney, seal their records with respect
to the minor and the request for relief under this section for three
years from the date of the arrest or citation and thereafter destroy
the records and the request.  A determination of factual innocence
shall not be made pursuant to this subdivision unless the law
enforcement agency and probation officer, with the concurrence of the
district attorney, determine that no reasonable cause exists to
believe that the minor committed the offense for which the arrest was
made or the citation was issued.  The law enforcement agency and
probation officer having jurisdiction over the offense shall notify
the Department of Justice, and any other law enforcement agency or
probation officer that arrested or cited the minor or participated in
the arrest or citing of the minor for an offense for which the minor
has been found factually innocent under this subdivision, of the
sealing of the minor's records and the reason therefor.  The
Department of Justice and any law enforcement agency or probation
officer so notified shall forthwith seal its records of the arrest or
citation and the notice of sealing for three years from the date of
the arrest or citation, and thereafter destroy those records and the
notice of sealing.  The law enforcement agency and probation officer
having jurisdiction over the offense and the Department of Justice
shall request the destruction of any records of the arrest or
citation that they have given to any local, state, or federal agency
or to any other person or entity.  Each agency, person, or entity
within the State of California receiving that request shall destroy
its records of the arrest or citation and that request, unless
otherwise provided in this section.
   (b) If, after receipt by the law enforcement agency, probation
officer, and the district attorney of a request for relief under
subdivision (a), the law enforcement agency, probation officer, and
district attorney do not respond to the request by accepting or
denying the request within 60 days after the running of the statute
of limitations for the offense for which the minor was cited or
arrested or within 60 days after receipt of the petition in cases
where the statute of limitations has previously lapsed, then the
request shall be deemed to be denied.  In any case where the request
of a minor to the law enforcement agency and probation officer to
have a record destroyed is denied, petition may be made to the
juvenile court that would have had jurisdiction over the matter.  A
copy of the petition shall be served on the district attorney of the
county having jurisdiction over the offense at least 10 days prior to
the hearing thereon.  The district attorney may present evidence to
the court at the hearing.  Notwithstanding any other provision of
law, any judicial determination of factual innocence made pursuant to
this subdivision may be heard and determined upon declarations,
affidavits, police reports, or any other evidence submitted by the
parties that is material, relevant, and reliable.  A finding of
factual innocence and an order for the sealing and destruction of
records pursuant to this subdivision or subdivision (d) shall not be
made unless the court finds that no reasonable cause exists to
believe that the minor committed the offense for which the arrest was
made or the citation was issued.  In any court hearing to determine
the factual innocence of a minor, the initial burden of proof shall
rest with the minor to show that no reasonable cause exists to
believe that the minor committed the offense for which the arrest was
made or the citation was issued.  If the court finds that this
showing of no reasonable cause has been made by the minor, then the
burden of proof shall shift to the respondent to show that a
reasonable cause exists to believe that the minor committed the
offense for which the arrest was made or the citation was issued.
   (c) If the court finds the minor to be factually innocent of the
charges for which the arrest was made or the citation was issued,
then the court shall order the law enforcement agency and probation
officer having jurisdiction over the offense, the Department of
Justice, and any law enforcement agency or probation officer that
arrested or cited the minor or participated in the arrest or citation
of the minor for an offense for which the minor has been found
factually innocent under this section, to seal their records relating
to the minor and the court order to seal and destroy those records,
for three years from the date of the arrest or citation and
thereafter to destroy those records and the court order to seal and
destroy those records.  The court shall also order the law
enforcement agency and probation officer having jurisdiction over the
offense and the Department of Justice to request the destruction of
any records of the arrest that they have given to any local, state,
or federal agency, person or entity.  Each state or local agency,
person or entity within the State of California receiving that
request shall destroy its records of the arrest or citation and the
request to destroy those records, unless otherwise provided in this
section.  The court shall give to the minor a copy of any court order
concerning the destruction of the arrest or citation records.
   (d) Notwithstanding Section 781, in any case where a minor has
been arrested or a citation has been issued, and an accusatory
pleading or petition to adjudge the minor a ward of the court has
been filed, but not sustained, the minor may, at any time after
dismissal of the proceeding, request in writing from the court that
dismissed the proceeding a finding that the minor is factually
innocent of the charges for which the arrest was made or the citation
was issued.  A copy of the request shall be served on the district
attorney of the county in which the accusatory pleading or petition
was filed at least 10 days prior to the hearing on the minor's
factual innocence.  The district attorney may present evidence to the
court at the hearing.  The hearing shall be conducted as provided in
subdivision (b).  If the court finds the petitioner to be factually
innocent of the charges for which the arrest was made or the citation
was issued, then the court shall grant the relief as provided in
subdivision (c).
   (e) Notwithstanding Section 781, in any case where a minor has
been arrested or cited and an accusatory pleading or petition to
adjudge the minor a ward of the court has been filed, but not
sustained, and it appears to the judge presiding at the proceeding
that the minor was factually innocent of the offense, the court, upon
the written or oral motion of any party in the case or on the court'
s own motion, may grant the relief provided in subdivision (c).  If
the district attorney objects to the court granting that relief, the
district attorney may request a hearing as to the minor's factual
innocence .  This hearing shall be conducted as provided in
subdivision (b).
   (f) In any case where a minor who has been arrested or cited is
granted relief pursuant to this section, the law enforcement agency
and probation officer having jurisdiction over the offense or the
court shall issue a written declaration to the minor stating that it
is the determination of the law enforcement agency and probation
officer having jurisdiction over the offense or the court that the
minor is factually innocent of the charges for which the minor was
arrested or cited and that the minor is thereby exonerated.
Thereafter, the arrest or citation shall be deemed not to have
occurred and the minor may answer accordingly any question relating
to its occurrence.
   (g) The Department of Justice shall furnish forms to be utilized
by minors requesting the destruction of their arrest or citation
records and for the written declaration that a minor was found
factually innocent under this section.
   (h) Documentation of arrest or citation records that are destroyed
pursuant to this section that are contained in investigative police
reports shall bear the notation "Exonerated" whenever reference is
made to the minor.  The minor shall be notified in writing by the law
enforcement agency and probation officer having jurisdiction over
the offense of the sealing and destruction of the arrest and citation
records pursuant to this section.
   (i) Any finding that a minor is factually innocent pursuant to
this section shall not be admissible as evidence in any action.
   (j) Destruction of records of arrest or citation pursuant to this
section shall be accomplished by permanent obliteration of all
entries or notations upon those records pertaining to the arrest or
citation, and the record shall be prepared again so that it appears
that the arrest or citation never occurred.  However, where the only
entries on the record pertain to the arrest or citation and the
record can be destroyed without necessarily effecting the destruction
of other records, then the document constituting the record shall be
physically destroyed.
   (k) No records shall be destroyed pursuant to this section if the
minor or another individual arrested or cited for the same offense
has filed a civil action against the peace officers, law enforcement
agency, or probation officer that made the arrest, issued the
citation, or commenced the proceedings and if the agency or officer
that is the custodian of those records has received a certified copy
of the complaint in the civil action, until the civil action has been
resolved.  Any records sealed pursuant to this section by the court
in the civil action, upon a showing of good cause, may be opened and
submitted into evidence.  The records shall be confidential and shall
be available for inspection only by the court, jury, parties,
counsel for the parties, and any other person authorized by the
court.  Immediately following the final resolution of the civil
action, records subject to this section shall be sealed and destroyed
pursuant to this section.
   (l) Any relief that is available to a minor under this section for
an arrest or citation shall also be available for a minor who is
taken into temporary custody and then released pursuant to Sections
625 and 626.
   (m) This section shall not apply to any offense that is classified
as an infraction.
   (n) (1) This section shall be repealed on the effective date of a
final judgment based on a claim under the California or United States
Constitution holding that evidence that is relevant, reliable, and
material may not be considered for purposes of a judicial
determination of factual innocence under this section.  For purposes
of this subdivision, a judgment by the appellate division of a
superior court is a final judgment if it is published and if it is
not reviewed on appeal by a court of appeal.  A judgment of a court
of appeal is a final judgment if it is published and if it is not
reviewed by the California Supreme Court.
   (2) Any decision referred to in this subdivision shall be stayed
pending appeal.
   (3) If not otherwise appealed by a party to the action, any
decision referred to in this subdivision that is a judgment by the
appellate division of the superior court, shall be appealed by the
Attorney General.
  SEC. 2.  Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
costs mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.  If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
